MiFID Passporting

This section contains information about passporting and how financial products and services move freely across Ireland and the EEA.

MiFID Passporting in/out Framework

The Markets in Financial Instruments Directive (MiFID) sets out the principles of a single EU/EEA authorisation for firms. This allows a MiFID investment firm to provide investment services and/or perform investment activities throughout the EEA, provided it is authorised in Ireland (or other EU/EEA Member State) for these activities first, through:

• The establishment of a branch in another Member State or
• The free provision of services on a cross border basis (i.e. without establishing a permanent presence) or
• Providing arrangements to facilitate access to a Multilateral Trading Facility (MTF) or an Organised Trading Facility (OTF) or
• The use of a tied agent established in another Member State.

In this regard, all EEA Competent Authorities uphold practical co-operation for the purpose of facilitating the passport notification process for MiFID investment firms.

MiFID investment firms and market operators should consult the appropriate level two texts, which have been published in the Official Journal of the European Union, which include Commission Implementing Regulation (EU) 2017/2382

An Irish MiFID investment firm is required to notify Central Bank of Ireland of any change in respect of the provision of cross border services, including the use of EEA based tied agents or the operation of a branch, at least one month before implementing the proposed change.

EU/EEA Branches

An Irish MiFID investment firm wishing to establish a branch in another Member State must communicate certain information to the Central Bank, which includes a "programme of operations" setting out, amongst other things:

• The investment services and/or activities to be offered
• The business plan and organisational structure of the branch
• If the branch intends to use a tied agent and
• Other related information.

The Central Bank will communicate the notification to the Competent Authority of the host Member State(s) within three month of the receipt of a complete and accurate notification, subject to the Central Bank being satisfied with the administrative structure and the financial situation of the firm and applicable provisions within Article 35 of MiFID II (including relevant Commission Delegated Regulations).

Please note that this form should also be used to inform the Central Bank of any changes to the particulars of a branch passport notification.

Third Country Branches (Outside EU/EEA)

The Central Bank notes that a number of MiFID investment firms authorised in Ireland have branches in countries outside the EU/EEA (i.e. “outgoing third country branches”), including branches that were in existence in the UK prior to Brexit. Any MiFID investment firm that proposes to set up a branch in a third country, or to materially increase the operations of any such branch, should consult in advance with the Central Bank in accordance with Regulation 4(1) of the Central Bank (Supervision and Enforcement) Act 2013 (Section 48(1)) (Investment Firms) Regulations 2023.

Any MiFID investment firm that operates or intends to operate an outgoing third country branch should consider the contents of European Securities and Markets Authority's (ESMA) MiFID II supervisory briefing on the supervision of non-EU branches of EU firms providing investment services and activities (the "Supervisory Briefing").

The Central Bank applies the contents of this supervisory briefing when considering any existing or proposed outgoing third country branches and expects that a MiFID investment firm be able to demonstrate, on an ongoing basis, that any such branch structure is consistent with the principles set out in the supervisory briefing. MiFID investment firms should provide the information set out in paragraph 18 of the Supervisory Briefing when initiating any consultation on this topic with the Central Bank.

The Central Bank will consider the nature, scale and complexity of the proposed business to be carried out by the outgoing third country branch, and whether the MiFID investment firm as a whole can be adequately supervised by the Central Bank in considering such proposals. The Central Bank will expect the MiFID investment firm to have assessed whether any additional risks arise from the use of a third country branch structure and will consider whether the firm proposes to put any mitigants in place to address these risks.

In line with the ESMA Opinion on "supervisory convergence in the area of investment management in the context of the United Kingdom withdrawing from the European Union", the Central Bank expects that key function holders within the MiFID investment firm, other than the branch manager, would not be based in the outgoing third country branch. Firms should note the amendment to the circumstances in which a PCF-16 appointment is required, effective 4 April 2022, such that it includes branch managers in non-EEA countries.

This amendment mandates that the managers of MiFID Investment Firm branches that are located outside of Ireland be subject to the pre-approval requirement of Section 23 of the Central Bank Reform Act 2010.

Cross Border Services and/or Activities

An Irish MiFID investment firm or market operator wishing to provide investment services on a "freedom of service basis" in another Member State must notify the Central Bank. The Central Bank will communicate the notification to the Competent Authority of the host Member State(s) within one month of the receipt of a complete and accurate notification, subject to the applicable provisions within Article 34 of MiFID II (including relevant Commission Delegated Regulations).

Please note that this form should also be used to inform the Central Bank of any changes to the particulars of the access to an MTF/OTF notification.

Access to an MTF or an OTF

An Irish MiFID investment firm or market operator wishing to provide arrangements in another Member State to facilitate access to an MTF or an OTF must notify the Central Bank. The Central Bank will communicate the notification to the Competent Authority of the host Member State(s) within one month of the receipt of a complete and accurate notification, subject to the Central Bank’s assessment subject to the applicable provisions within Article 34-36 of MiFID II (including relevant Commission Delegated Regulations).

Please note that this form should also be used to inform the Central Bank of any changes to the particulars of the access to an MTF/OTF notification.

Tied Agents

An Irish MiFID investment firm wishing to use a tied agent established in another Member State must notify the Central Bank in respect of each tied agent.

Also, an Irish MiFID investment firm wishing to establish a branch that intends to use a tied agent must notify the Central Bank in respect of each tied agent (Separate notifications are required in respect of each tied agent).

The Central Bank will communicate the notification to the Competent Authority of the host Member State(s) within three months of the receipt of a complete and accurate notification, subject to the applicable provisions within Article 34 & 35 of MiFID II (including relevant Commission Delegated Regulations).

Please note that this form should also be used to inform the Central Bank of any changes to the particulars of a tied agent passport notification.

Termination of Activities of a Branch or a Tied Agent

Where the operations of a branch are terminated or the use of a tied agent established in another Member State will cease, the Irish MiFID Investment Firm is required to inform the Central Bank.